All FWLR This Week: Whether Mandatory to Raise Questions in Originating Summons


Parties: Boniface Ebere Okezie & Ors V CBN & Ors

Court: Supreme Court


  • PAUL ADAMU GALUMJE JSC (Read the Lead Judgment)

Citation: (2020) All FWLR (Pt1050) P. 535


The 4th respondent, as the Governor of Central Bank of Nigeria issued an order removing all the executive directors of the 6th respondent and injected some funds therein on grounds that it was weak and undercapitalized. The 4th respondent further published his actions and accusations against the 6th respondent, threatening to sell the latter to foreign investors or turn it over to the Nigeria Deposit Insurance Corporation. Subsequent upon this, the removed directors were handed over to the Economic and Financial Crimes Commission (E.F.C.C.) for investigation. The shareholders as plaintiff (now appellants) filed an action in the Federal High Court, Lagos judicial division via originating summons, seeking declaratory reliefs inter alia that; the purported sack of all directors by the 4th respondent and replacement of them with 5th respondent was unlawful and in breach of banks and other Financial Institutions Act and/or the Central Bank of Nigeria (CBN) Act; Orders restraining the 4th respondent from further parading himself as the Governor of C.B.N and from entering into any arrangement with any person to dispose of any share of the 6th respondent to transfer its control to anybody and from further prosecution of any customer of the bank and damages. The 1st6th respondents filed a preliminary objection to the action. The trial court upheld the preliminary objection and dismissed appellants’ action. Dissatisfied, the appellant appealed to the Court of Appeal, which court dismissed the appeal. Yet dissatisfied, they appealed to the Supreme Court contending that the lower court erred in upholding the dismissal of their action for being incompetent.

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Whether mandatory to raise questions in originating summons filed in the Federal High Court. Federal High Court Rules, order 3, rules 7 and 9(1) juxtaposed

 “The decision of the lower court to dismiss the appeal was based on Order 3, rule 7 of the Federal High Court Rules 2009 and the case of Famfa Oil Limited v. Attorney-General, Federation & Anor. (2003) FWLR (Pt. 184) 195, (2003) 18 NWLR (Pt. 852) 453 and a host of other cases. Order 3, rule 7 of the FHR 2009 provides as follows:-

‘Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.’

There is clearly a provision in this Rule that has provided for the raising of questions in an originating summons before reliefs are claimed. However, this provision is not absolute. If the provision in Order 3, rule 7 were absolute, the provision in Order 3, rule 9(1) would have been unnecessary. This rule provides as follows:-

 ‘An originating summons shall be in the forms 3, 4 or 5 to these Rules, with such variations as circumstances may require.’

Learned counsel for respective parties are ad idem that if a plaintiff desires to raise questions in his originating summons, he will resort to Form 3 which is a general Form. However, a party who does not desire to raise questions in his originating summons can avail himself of the use of the special Form 4, as it is not necessary to raise questions in the originating summons. Form 5 is the requisite Form for ex-parte originating summons.

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The authority in Famfa Oil Limited v. Attorney General, Federation & Anor. (supra) and a host of other authority cited by the lower court in support of its decision were decided under the Federal High Court (Civil Procedure) Rules 2000. Order 7 rules 1 and 3 of the FHR 2000 made the following provisions:-

‘7(1) The provisions of this Order shall apply to all originating summons subject to any special provisions relating to originating summons under any enactment or Law

 (3) Every originating summons shall include a statement of the questions on which the plaintiff seeks the determination or direction of the court or as the case may be concise statement of the relief or remedy claimed in the proceeding began by the originating summons with sufficient particulars to identify the causes of action in respect of which the plaintiff claims that relief or remedy.’

The Federal High Court (Civil Procedure) Rules 2009 does not have such mandatory provision. Instead Order 3 Rule 9(1) of the Federal High Court Rules has given liberty to the plaintiff who is desirous of commencing an action by originating summons to choose between Form 3 and Form 4 depending on the circumstances of his case. If he chooses Form 4, he does not need to raise questions before setting out the reliefs which he seeks. I think there is sufficient provision in Order 3 rule 9(1) of the Rules of the Federal High Court to sustain the originating summons of the appellants at the trial court”

Per GALUMJE JSC: [Pp. 550 – 552; paras. G – C]


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